Chapter 21.12 — DEVELOPMENT AGREEMENTS

21.12.010 - Purpose and applicability.

A.

Purpose. This chapter establishes procedures and requirements for considering and entering into legally binding development agreements with applicants for development projects as specified in and as authorized by California Government Code, Sections 65864—65869.5 et seq.

B.

Incorporation by Reference. The city incorporates by reference the provisions of California Government Code Sections 65864—65869.5. In the event of any conflict between those statutory provisions and this chapter, the statues shall control.

C.

Applicability. Used in conjunction with annexation, general plan amendment, specific plan, rezoning, planned development, tentative tract map, and/or conditional use permit approvals, development agreements establish the mutually agreeable terms and conditions under which development projects may proceed. Development agreements are best used for large, complex, or phased projects that require extended construction time, and which involve numerous public improvements such as streets, utilities, storm drainage improvements, public parking, trails, schools, parks, open space, and other improvements of community-wide benefit. The development agreement can specify the rules, standards, policies, fees, and regulations to which the project is subject.

(Ord. No. 1144 N.S., § 3(Exh. A), 10-1-2024)

A.

Application. An application for a development agreement shall be filed and processed on the prescribed application forms in accordance with the procedures in Chapter 21.09 (Application Processing Procedures). It is the responsibility of the applicant to provide evidence in support of the findings required by Section 21.12.050 (Required Findings). Initial review of the application, including time requirements and requests for information, shall be as provided in Section 21.09.060 (Initial Application Review).

B.

Eligible Applicants. Any person having legal or equitable interest in real property may apply for a development agreement consistent with Section 21.09.050 (Eligible Applicants), except that a person may not file, and the director shall not accept, an application which is the same as, or substantially the same as, an application which was denied within the previous year, unless the application is initiated by the city council.

C.

Review Authority.

1.

The city manager shall negotiate the specific components and provisions of the development agreement on behalf of the city for planning commission review and recommendation to the city council. The city manager may request input from other affected departments as needed.

2.

The planning commission shall act as the advisory body and review the development agreement to provide a recommendation to the city council.

3.

The city council shall act as the review authority, and after receiving recommendations from the planning commission, may adopt, reject, modify, or take no action on a development agreement based on consideration of the requirements of this chapter.

D.

Preapplication Review. Before submitting an application and support materials, applicants shall discuss the proposal with the director. At such review, the applicant should present a preliminary site plan and show basic features of the proposed project, including its public purposes and/or benefits. The director may request the city council provide authorization to process the application. The city council shall, upon request, determine whether or not to direct staff to accept a filed application for future consideration. Such a review shall be at the city council's sole discretion.

(Ord. No. 1144 N.S., § 3(Exh. A), 10-1-2024)

Development agreements shall include the following:

A.

The duration of the agreement, including a specified termination date;

B.

Public benefits contributed by the project in exchange for the benefits to the project provided by the development agreement.

C.

The land uses and site plan to be permitted on the property;

D.

The density or intensity of land use to be permitted;

E.

The maximum height, size, and location of proposed buildings;

F.

The reservation or dedication of land for public purposes to be secured, including, but not limited to, rights-of-way, open space preservation, and public access easements;

G.

Proposed exceptions from zoning regulations or other development standards (including subdivision standards), and findings where required;

H.

The time schedule established for periodic review as required by Section 21.12.090 (Periodic Review); and

I.

Development agreements may also include additional terms, conditions, and restrictions in addition to those listed in Subsections A—H of this section. These additional terms may include, but are not limited to:

1.

Development schedules providing that construction of the proposed development as a total project or in phases be initiated and/or completed within specified time periods;

2.

The construction of public facilities required in conjunction with such development, including but not limited to vehicular and pedestrian rights-of-way, public art and other landscape amenities, drainage and flood-control facilities, parks and other recreational facilities, sewers and sewage treatment facilities, sewer lift stations, and water well and treatment facilities or payment of fees in lieu of such dedications and improvements;

3.

Method of financing such improvements and, where applicable, reimbursement to developer or city;

4.

City fees, fee credits, and payment timing;

Prohibition of one or more uses normally listed as permitted, accessory, subject to review or subject to conditional use permit in the zoning district normally allowed by right;

6.

Limitations on future development or special terms, restrictions, requirements or conditions under which subsequent development approvals and discretionary actions not included in the agreement may occur;

7.

The requirement of a faithful performance bond where deemed necessary to and in an amount deemed sufficient to guarantee the faithful performance of specified terms, conditions, restrictions and/or requirements of the agreement. In lieu of a bond, the applicant may deposit with the city clerk certificates of deposit or other security acceptable to the director of administrative services;

8.

Specific design criteria for the exteriors of buildings and other structures, including colors and materials, landscaping, and signs;

9.

Special yards, open spaces, trails, staging areas, buffer areas, fences and walls, public art, landscaping, and parking facilities, including vehicular and pedestrian ingress and egress;

10.

Performance standards regulating such items as noise, vibration, smoke, dust, dirt, odors, gases, garbage, heat, and the prevention of glare or direct illumination of adjacent properties;

11.

Limitations on operating hours and other characteristics of operation which the city council determines could adversely affect the reasonable use and enjoyment of surrounding properties; and

12.

An indemnity clause requiring the applicant to indemnify and hold the city harmless against claims arising out of or in any way related to the actions of applicant in connection with the application or the development process, including all legal fees and costs.

(Ord. No. 1144 N.S., § 3(Exh. A), 10-1-2024)

21.12.040 - Hearings, recommendation, and action.

A.

Initiation of Hearings. Hearings on a development agreement may be initiated:

1.

Upon the filing of an application in accordance with the procedures in Chapter 21.09 (Application Processing and Common Procedures); or

By the city council by a simple majority vote.

B.

Planning Commission Hearing and Recommendation. When the city manager determines development agreement negotiations are complete, the item shall be scheduled for planning commission hearing in accordance with Chapter 21.26 (Public Hearings and Notice). Following the public hearing, the planning commission shall make a recommendation on the proposed development agreement to the city council. Such recommendation shall include the reasons for the recommendation and findings related to Section 21.12.050 (Required Findings). The director shall transmit the planning commission's written recommendation and complete record of the application to the city council.

1.

Approval. If the planning commission has recommended approval of the development agreement, the city council is required to take final action pursuant to Subsection 21.12.040(C) (City Council Hearing and Action).

2.

Denial. If the planning commission has recommended against the development agreement, the city council is not required to take any further action unless an appeal is filed in accordance with Chapter 21.25 (Appeals and Calls for Review).

C.

City Council Hearing and Action.

1.

Hearing. After receiving the report from the planning commission but no later than the time specified by Section 65943 of the California Government Code, the city council shall hold a public hearing in accordance with Chapter 21.26 (Public Hearings and Notice). Notice of the hearing shall also be mailed or delivered to any other local agency expected to provide essential facilities or services to the property that is the subject of the development agreement.

2.

Ordinance Required. The city council shall adopt development agreements via ordinance.

3.

Ordinance First Reading. After the city council completes the public hearing, the city council may introduce the ordinance for first reading by title only and approve, modify, or deny the development agreement. Matters not previously considered by the planning commission during its hearing may, but need not, be referred to the planning commission for report and recommendation. The planning commission may, but need not, hold a public hearing on matters referred to it by the city council.

4.

Ordinance Second Reading. If the city council votes to adopt a development agreement, the ordinance shall require a second reading, unless otherwise obviated by Paragraph 21.12.060(A)2.

D.

Failure to Receive Notice. The failure to receive notice by any person entitled thereto by law or this chapter does not affect the authority of the city to enter into a development agreement.

E.

Irregularity in Proceedings. No action, inaction, or recommendation regarding the proposed development agreement shall be held void or invalid, or be set aside by a court by reason of any error, irregularity, informality, neglect, or omission as to any matter pertaining to the application, notice, finding, record, hearing, report, recommendation, or any other matters of procedure whatsoever unless, after an examination of the entire record, the court is of the opinion that the error was judicial and that a different result would have been probable if the error had not occurred or existed.

(Ord. No. 1144 N.S., § 3(Exh. A), 10-1-2024)

The review authority may approve a development agreement only if it first makes all of the following findings:

A.

The proposed development agreement is consistent with the general plan and any applicable specific plan;

B.

The proposed development agreement promotes the general welfare, allows more comprehensive land use planning, and provides substantial public benefits or necessary public improvements, making it in the city's interest to enter into the development agreement with the applicant; and

C.

The proposed project and development agreement:

1.

Will not adversely affect the health, safety, or welfare of persons living or working in the surrounding area;

2.

Will be appropriate at the proposed location and will be compatible with adjacent land uses; and

3.

Will not have a significant adverse impact on the environment.

(Ord. No. 1144 N.S., § 3(Exh. A), 10-1-2024)

A.

Adoption by Ordinance—Execution of Contract.

1.

The development agreement shall be approved by the adoption of an ordinance. The ordinance shall refer to and incorporate by reference the text of the development agreement and findings related to Section 21.12.050 (Required

Findings). Upon the approval of the ordinance following its first reading, the city shall enter into the development agreement by the execution thereof by the city manager.

2.

No ordinance shall be finally adopted via a second reading and the city manager shall not execute a development agreement until it has been executed by the applicant and all other parties to the agreement. If the applicant has not executed the agreement or agreement as modified by the city council, and returned the executed agreement to the city clerk within sixty days following the ordinance's first reading, the approval shall be deemed withdrawn, and the city council shall not give a second reading to such ordinance, nor shall the city manager execute the agreement.

3.

Such sixty-day time period may be extended upon approval of the city council.

B.

Recordation of Executed Agreement. Following the execution of a development agreement by the city manager, the city clerk shall record the executed agreement with the county recorder.

(Ord. No. 1144 N.S., § 3(Exh. A), 10-1-2024)

A.

Existing Rules and Regulations. Unless otherwise specified in the development agreement, the city's rules, regulations, and official policies governing permitted uses of the property, density and design, and improvement standards and specifications applicable to development of the property shall be those city rules, regulations, and official policies in force on the effective date of the development agreement.

B.

Future Rules and Regulations. A development agreement shall not prevent the city, in subsequent actions applicable to the property, from applying new rules, regulations, and policies that do not conflict with those rules, regulations, and policies applicable to the property as set forth in the development agreement. A development agreement shall not prevent the city from denying or conditionally approving any subsequent land use project or authorization for the project on the basis of such rules, regulations, and policies. Unless otherwise specified in the development agreement, a development agreement shall not exempt the applicant from obtaining future discretionary land use approvals. A development agreement shall not preclude the city from adopting and implementing emergency measures regarding water or sewer deficiencies when the city council determines that such action is necessary to protect public health and safety. If such action becomes necessary, the city council reserves the right to suspend water and sewer service on an equitable basis until such deficiencies are corrected.

C.

State and Federal Rules and Regulations. In the event that any regulation or law of the state of California or the United States, enacted or interpreted after a development agreement has been entered into prevents or precludes compliance with one or more provisions of the development agreement, then the development agreement may be modified or suspended in the manner and pursuant to the procedures specified in the development agreement, as may be necessary to comply with such regulation or law.

(Ord. No. 1144 N.S., § 3(Exh. A), 10-1-2024)

21.12.080 - Enforcement and continuing validity.

A.

Enforcement. Unless and until amended or canceled in whole or in part as provided in Section 21.12.100 (Amendment and Cancellation of Development Agreements), a development agreement shall be enforceable by any party to the agreement, regardless of any change in regulations which alters or amends the regulations applicable to the project covered by a development agreement, except as specified in Sections 21.12.090 (Periodic Review).

B.

Continuing Validity. The development agreement shall be binding upon, and the benefits of the agreement shall inure to all successors in interest to the parties to the agreement.

(Ord. No. 1144 N.S., § 3(Exh. A), 10-1-2024)

The applicant shall be required to demonstrate compliance with the provisions of the development agreement at least once a year at which time the director shall review each approved development agreement.

A.

Finding of Compliance. If the director, based on substantial evidence, finds compliance by the applicant with the provisions of the development agreement, no action is required.

B.

Finding of Noncompliance.

1.

If the director finds the applicant has not complied with the provisions of the development agreement, the director may issue a finding of noncompliance, which may be recorded by the city with the county recorder after it becomes final. The director shall specify in writing to the applicant the respects in which the applicant has failed to comply and shall set forth terms of compliance and specify a reasonable time for the applicant to meet the terms of compliance. If the applicant does not comply with any terms of compliance within the prescribed time limits, the development agreement shall be subject to termination or revision pursuant to this chapter. It is the duty of the applicant or his successor in interest to provide evidence of good-faith compliance with the agreement to the director's satisfaction at the time of their review. Refusal by the applicant or their successor in interest to provide the required information shall be prima facie evidence of violation of such agreement.

2.

If at the end of the time period established by the director, the applicant or his successor in interest has failed to comply with the terms of the agreement or has not submitted evidence substantiating such compliance, the director shall notify the city council of their findings, recommending such action as the director deems appropriate, including legal action to enforce compliance or to terminate or modify the agreement.

3.

When the director notifies the city council that a development agreement is being violated, a public hearing shall be scheduled before the city council to consider the matter. Procedures for conduct of such hearing shall be the same as provided for initiation and consideration of a development agreement.

If the city council determines that the applicant or his successor in interest is in violation of a development agreement, it may take one of the following actions:

a.

Schedule the matter for city council hearing for modification or possible termination of the agreement. Procedures for hearing notice shall be the same as provided in Chapter 21.26 (Public Hearings and Notice); or

b.

Continue the matter for further consideration.

C.

Amendment or Termination for Violations.

1.

Findings. After the hearing required by Paragraph 21.12.090(B)4., the city council may terminate or amend the agreement upon finding that:

a.

Terms, conditions, and obligations of any party to the development agreement have not been met;

b.

The scope, design, intensity, or environmental effects of project were represented inaccurately;

c.

The project has been or is being built, operated, or used in a manner that differs significantly from approved plans, permits, or other entitlements; or

d.

Parties to the agreement have engaged in unlawful activity, or have used bad faith in the performance of, or the failure to perform their obligations under the agreement.

2.

Amendment. Such remedial action may include, but is not limited to, changes to project design or uses, operating characteristics, or necessary on-site or off-site improvements that are determined to be reasonably necessary to protect public health, safety, or welfare, and to correct problems caused by or related to noncompliance with terms of the agreement.

(Ord. No. 1144 N.S., § 3(Exh. A), 10-1-2024)

21.12.100 - Amendment and cancellation of development agreements.

A.

Mutual Agreement. A development agreement may be amended, extended, or canceled in whole or in part, by mutual consent of all parties to the agreement or their successors in interest.

1.

Major Amendment. Changes to the terms and key deal points of the development agreement shall be considered a major amendment and shall require a formal amendment approved by the city council.

2.

Minor Amendments and Interpretations—Operating Memos. Both parties may agree to minor amendments and interpretations of the development agreement in the form of an "operating memorandum (operating memo)." Operating memos shall be approved by the city manager and the developer.

3.

Procedures. Procedures for amendment (except minor amendments and interpretations per Paragraph 21.12.100(A)2.), time extensions, or cancellation of the development agreement by mutual consent shall be the same as provided for initiation and consideration of such agreement.

B.

After Finding of Noncompliance. If a finding of noncompliance does not include terms of compliance, or if applicant does not comply with the terms of compliance within the prescribed time limits, the director may refer the development agreement to the city council for termination or revision. After the public hearing, the city council may terminate the development agreement, modify the finding of noncompliance, or rescind the finding of noncompliance, and issue a finding of compliance.

C.

Recordation. If the parties to the agreement or their successors in interest amend or cancel the development agreement, or if the city terminates or modifies the development agreement for failure of the applicant to fully comply with the provisions of the development agreement, the city clerk shall record notice of such action with the county recorder.

D.

Rights of the Parties After Cancellation or Termination. If a development agreement is cancelled or terminated, all rights of the applicant, property owner, or successors in interest under the development agreement shall terminate and the applicant, property owner, or successors in interest shall otherwise comply with city codes, regulations, development standards and other applicable laws in effect at the time of termination of the agreement. If a development agreement is terminated following a finding of noncompliance, the city may, in its sole discretion, determine to return all benefits, including reservations or dedications of land, and payments of fees, received by the city.

(Ord. No. 1144 N.S., § 3(Exh. A), 10-1-2024)